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Bartholomew v. Director of Revenue

Court of Appeals of Missouri, Eastern District, First Division

May 26, 2015

MATTHEW S. BARTHOLOMEW, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant

Page 466

Appeal from the Circuit Court of St. Charles County. Hon. Matthew Thornhill.

Chris Koster, Jefferson City, MO, for appellant.

Travis L. Noble, Clayton, MO, for respondent.

CLIFFORD H. AHRENS, Judge. Lawrence E. Mooney, P.J., concurs. Lisa Van Amburg, J., concurs.

OPINION

CLIFFORD H. AHRENS, J.

Page 467

The Director of Revenue of the State of Missouri (" Director" ) appeals from the judgments of the trial court that ordered the Director to remove the administrative-alcohol suspension from Matthew Bartholomew's (" Driver" ) driving record and to reinstate Driver's driving privileges.[1] We reverse and remand.

On October 1, 2012, Sergeant Terry Potter (" Sergeant Potter" ) of the Missouri Highway patrol observed a vehicle exceeding the posted speed limit and initiated a traffic stop of the car, which was operated by Driver. Sergeant Potter noticed a strong smell of alcohol coming from the car, and asked Driver if he had been drinking. Driver told Sergeant Potter that he had a few drinks about an hour prior to the traffic stop. Driver agreed to submit to field sobriety tests. Segeant Potter administered several tests, including the horizontal gaze nystagmus (" HGN" ) test, the walk-and-turn test, and the one-leg-stand test. Driver exhibited 6 out of 6 signs of intoxication on the HGN test, 4 out of 8 signs of intoxication on the walk-and-turn test, and 2 out of 4 signs of intoxication on the one-leg-stand test. Sergeant Potter asked Driver to rate his own intoxication on a scale of 1 to 10, to which Driver replied he was a 5 or 6.

Sergeant Potter arrested Driver and conveyed him to Troop C Headquarters, where he informed Driver of Missouri's Implied Consent Law and requested a breath sample. Driver complied, and the breathalyzer indicated that he had a blood alcohol content (" BAC" ) of 0.098%. Trooper J.T. Hedrick had performed maintenance on the breathalyzer used by Driver on September 7, 2012. Trooper Hedrick's maintenance report reflected that the breathalyzer was performing within established limits.

Director suspended Driver's driving privileges after an administrative hearing. As a consequence of the administrative suspension, Driver's commercial driver's license (" CDL" ) was disqualified for one year. Driver filed petitions for a trial de novo from the administrative suspension of his driving privileges and for review of the disqualification of his CDL, both in the Circuit Court of St. Charles County, Missouri.

Page 468

The matter was tried in the circuit court on February 21, 2014. The principal issue at trial was the admission of Director's Exhibit A, which included Sergeant Potter's alcohol influence report, the breathalyzer maintenance report and supporting documents. Driver made a foundational objection to the admission of Exhibit A. The trial court admitted Exhibit A into evidence with the exception of the breathalyzer test result, which it deferred ruling on. Driver argued that the maintenance of the breathalyzer should have been done in accordance with the newly amended Department of Health & Senior Services (" DHSS" ) regulations that were in effect at the time of trial, which apparently required confirmation testing at three standards, 0.10 percent, 0.08 percent, and 0.04 percent. Director argued that the DHSS regulations that were in effect at the time that of the maintenance of the breathalyzer governed. The trial court expressed its belief, without ruling at that time, that if standards become stricter in favor of a defendant between arrest and the date of trial that the stricter standards would apply retroactively.

The trial court issued judgments on March 25, 2014 in both the suspension of driving privileges and disqualification of CDL cases. In both judgments, it found that Driver objected to the admission of the breathalyzer results on the ground that Director failed to present evidence of compliance with the appropriate state regulations. The trial court sustained Driver's objection, finding that the law in effect at the time of the hearing " mandated that the breath analyzer be calibrated at all three values" and that Director merely presented evidence that a single standard simulator solution was used for a single value, 0.10 percent, and presented no evidence of the use any other standard simulator solutions. The trial court found that Director failed to present sufficient credible evidence of compliance with the state regulations and with § 577.020.3 RSMo (Cum. Supp. 2011).[2] The trial court found that Director failed to meet the burden of providing sufficient credible evidence that Driver drove with a BAC at or above 0.08 percent. It specifically did not address the issue of probable cause.[3] The trial court found in favor of Driver and ordered Director to remove immediately the administrative-alcohol suspension from Driver's driving record and to reinstate his driving privileges to the extent otherwise allowable by law.

Director filed a Motion for a New Trial on April 24, 2014 in which the Director argued that the regulations in effect at the time of the maintenance of the breathalyzer on September 7, 2012, applied, and that that version of the regulations controlled pursuant to 19 CSR 25-30.051(8) (2012). The trial court held a hearing on this motion, wherein Driver and Director recapitulated the arguments that each made at trial regarding the applicable regulations and standards. It found that DHSS passed new regulations effective December 30, 2012 that required calibration of breath testing instruments using three simulated solutions instead of merely one, and that this ...


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